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General Antitrust

Was the Crisis in Antitrust a Trojan Horse?

Barak Orbach, Antitrust Law Journal, Forthcoming 2014.

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The Trojan Horse Hypothesis, an unwritten antitrust myth, states that, through the purposeful use of confusing terminology, Robert Bork was able to disguise his conservative agenda as a “pro-consumer policy,” enlist people who disagreed with or did not endorse this agenda to promote it, and turn it into the law of the land. The Hypothesis attempts to explain Robert Bork’s remarkable success in influencing the course of modern antitrust despite the fact that his antitrust philosophy rested on two flawed propositions: (1) that Congress enacted the Sherman Act as “a consumer welfare prescription,” and (2) that “competition must be understood as the maximization of consumer welfare or, if you prefer, economic efficiency.” In essence, the Hypothesis attempts to explain certain missteps in antitrust history and flaws in present antitrust logic. This Essay examines the Trojan Horse Hypothesis and its relevance to present antitrust policy. The Hypothesis stands for the role mistakes and errors play in modern antitrust. The Essay shows that, while intended to be persuasive, Robert Bork made a few mistakes but did not design an elaborate deception scheme. Bork’s mistakes served his personal biases and were not substantially different from those that are common in other academic works and judicial opinions. The endurance of Bork’s mistakes and their rationalization in modern antitrust, the Essay argues, reflects a disturbing intellectual decay of the kind Robert Bork criticized. Antitrust law and analysis will improve once courts and scholars stop pretending that flawed premises and meaningless terms have merit or can be rationalized.

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